Citation Nr: 0401005
Decision Date: 01/12/04 Archive Date: 01/22/04
DOCKET NO. 03-08 015 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Jackson, Mississippi
THE ISSUE
Entitlement to an increase in a 10 percent rating for
residuals of a shell fragment wound of the right knee area.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The veteran served on active duty from December 1951 to
December 1953.
This matter comes to the Board of Veterans' Appeals (Board)
from a September 2002 RO decision which denied an increased
(compensable) rating for residuals of a shell fragment wound
to the right upper leg with retained metallic foreign body.
A subsequent RO decision in January 2003 characterized this
condition as residuals of shell fragment wound of the right
upper leg with retained metallic foreign bodies and
impairment of the knee, and granted an increased 10 percent
rating for the condition. The veteran continues to appeal
for an increase in the 10 percent rating for residuals of a
shell fragment wound of the right knee area.
FINDINGS OF FACT
The veteran's residuals of a shell fragment wound of the
right knee area produce impairment equivalent to malunion of
the tibia with moderate knee impairment.
CONCLUSION OF LAW
The criteria for a 20 percent rating for residuals of a shell
fragment wound of the right knee area have been met. 38
U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic
Code 5262 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran served on active duty in the Marine Corps from
December 1951 to December 1953, and this included combat
service during the Korean War. His service separation
examination does not mention a wound to the right knee area.
His service separation document shows he received various
decorations including two Purple Heart Medals and a Bronze
Star Medal with valor device.
A VA physical examination in June 1970 noted the veteran's
history of a shell fragment wound to his right lower
extremity. X-rays of the right knee revealed a metallic
foreign body measuring 1 centimeter by 8 millimeters embedded
in the proximal tibia anteriorly, just lateral to the mid
line, and multiple tiny small foreign bodies at the site of
entrance of the bullet fragment. Physical examination noted
a small scar in the area of the lateral condyle of the right
tibia, just below the knee, and the veteran said this was the
point of entry of a shell fragment. Examination noted no
muscle impairment, and there was full range of motion. The
diagnosis was asymptomatic foreign body embedded in the right
tibia.
In July 1970, the RO issued a decision granting service
connection and a noncompensable (0 percent) rating for
residuals of shell fragment wound to the right upper leg with
retained metallic foreign bodies.
A June 1974 VA examination noted an asymptomatic healed
punctate wound on the anterolateral aspect of the right knee,
secondary to a shrapnel wound. There was also a right thigh
scar from the donor site of a skin graft related to treatment
of a left hand gunshot wound that occurred after service.
In August 1974, the RO granted the veteran non-service-
connected pension benefits based on the effects of multiple
conditions, primarily residuals of the post-service gunshot
wound to the left hand/arm.
In July 2002, the veteran filed a claim seeking an increased
rating for residuals of a shell fragment wound of the right
knee area.
In August 2002, the RO sent correspondence to the veteran
informing him of his rights and responsibilities under the
Veterans Claims Assistance Act of 2000. The letter requested
that he identify all medical treatment providers he had seen
for his condition, and the letter indicated that the VA would
attempt to obtain identified records on his behalf. The
veteran subsequently indicated that he had only obtained VA
treatment, and the RO obtained VA treatment records.
VA medical records from 2001 and 2002 reveal treatment for a
variety of conditions, including right knee pain.
In August 2002, a VA examination was conducted. The veteran
complainted of aching in his right knee with extended walking
or if he had to be on his knees for any length of time. He
noted that he had formerly worked as a painter but was
retired. Physical examination of the right knee revealed a 1
centimeter scar, slightly depressed, at the lateral aspect of
the right knee. The scar itself was nontender. The knee was
slightly swollen and tender below the scar. It was stable
medially and laterally as well as anteriorly and posteriorly.
Range of motion of the right knee was from 0 degrees
extension to 120 degrees of flexion. A report of earlier X-
rays of the right knee revealed a metallic foreign density in
the anterolateral portion of the right tibia near the
articular surface, which appeared to be a bullet with
fragments around it; the joint spaces were well preserved
with smooth articular surface; and there was a spur of the
superior and inferior articular surface of the tibia. The
examiner diagnosed residual shrapnel to the right knee.
Ongoing VA medical records reveal treatment for a variety of
conditions, including right knee pain. A September 2002 note
mentions that the veteran was free of right knee pain at that
time. In December 2002, he complained of increasing right
knee pain. The report noted that he had been walking over
two miles per day, and indicated that this was overuse. The
plan was to treat the problem with Tylenol, as needed, and to
refer him to physical therapy for strengthening exercises.
II. Analysis
The veteran contends that an increase in a 10 percent rating
is warranted for his service-connected residuals of a shell
fragment wound of the right knee area. Through
correspondence, the rating decision, and the statement of the
case, he has been notified with regard to the evidence
necessary to substantiate his claim, and of his and the VA's
respective duties to obtain evidence. Identified pertinent
medical records have been obtained, and he has been given a
VA examination. The Board finds that the notice and duty to
assist provisions of the law have been satisfied.
38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
When rating a veteran's service-connected disability, the
entire medical history must be considered. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). However, the present
level of disability is of primary concern in a claim for an
increased rating; the more recent evidence is generally the
most relevant in such a claim. Francisco v. Brown, 7 Vet.
App. 55 (1994).
Disability evaluations are determined by the application of a
schedule of ratings which are based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4.
When a diagnostic code does not provide for a noncompensable
rating, and the criteria for a compensable rating are not
shown, a zero percent rating is to be assigned. 38 C.F.R.
§ 4.31.
The veteran's residuals of a shell fragment wound of the
right knee area include a small superficial scar of the skin,
but recent medical evidence, including the 2002 VA
examination, shows the scar itself is asymptomatic. Thus a
compensable rating for the scar is not warranted. See
38 C.F.R. § 4.118, Diagnostic Code 7804. The medical
evidence does not describe muscle damage from the wound, and
thus rating as a muscle injury is not appropriate. See
38 C.F.R. § 4.56, § 4.73, Codes 5311 and 5312. The VA
examination indicates no right knee instability as would
warrant a compensable rating under 38 C.F.R. § 4.71a, Code
5257. There is some limitation of motion of the right knee
(motion was from 0 degrees extension to 120 degrees flexion
on last examination), but such does not strictly meet the
requirements for even a compensable rating under 38 C.F.R.
§ 4.71a, Codes 5260 and 5261. Even when the effects of pain
are considered, more than a 10 percent rating (the current
evaluation) would not be warranted under the limitation of
motion codes. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8
Vet. App. 202 (1995).
The RO has assigned the current 10 percent rating under the
diagnostic code for impairment of the tibia and fibula.
Under this code, impairment of the tibia and fibula, with
malunion, is rated 10 percent when there is slight knee or
ankle disability, 20 percent when there is moderate knee or
ankle disability, and 30 percent when there is marked knee or
ankle disability. 38 C.F.R. § 4.71a, Code 5262. The Board
agrees that this is an appropriate diagnostic code, as the
condition includes a metallic fragment embedded in the right
tibia near the knee, from the shell fragment wound, and this
is equivalent to malunion of the tibia. Additional metallic
fragments are in the soft tissue in this area. The recent VA
examination and treatment records show increasing right knee
pain, particularly with prolonged walking. There is
objective evidence of right knee tenderness, swelling, and
limited motion. Medication and physical therapy have been
prescribed. From all the evidence, the Board estimates that
there is overall moderate right knee impairment from
residuals of the shell fragment wound, and this supports a 20
percent rating under Code 5262. Marked right knee
impairment, as required from an even higher rating of 30
percent under this code, is not demonstrated.
In sum, the Board grants an increased rating, to the level of
20 percent under Diagnostic Code 5262, for the service-
connected residuals of a shell fragment wound of the right
knee area. The benefit-of-the-doubt rule, 38 U.S.C.A.
§ 5107(b), has been considered in granting this benefit.
ORDER
An increased rating, to 20 percent, for residuals of a shell
fragment wound of the right knee area is granted.
____________________________________________
L.W. TOBIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
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2003
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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2003
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4597
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